E 

93 

.143 

2nd  ser. 
no.  60 


Pancoast,  Charles  E.  39031027481217 

Indian  wardship 
DOES  NOT  CIRCULATE 


[No.  60 — Second  Series — 3000] 


Indian  Rights  Association, 

1305  Arch  Street, 

i 

Philadelphia,  Pa.,  October,  1901. 


INDIAN  WARDSHIP. 

By  Charles  e.  pancoast. 


The  relationship  between  the  Indian  tribes  and  the  United 
States  has  come  to  be  defined  by  the  term  “  Wardship.” 

In  1831  Chief  Justice  Marshall,  after  declining  to  describe 
the  Indian  tribes  as  foreign  nations,  said  “they  may  more  cor¬ 
rectly  perhaps  be  denominated  domestic  dependent  nations. 

They  are  in  a  state  of  pupilage.  Their  relation 
to  the  United  States  resembles  that  of  a  ward  to  his  guardian.” 
(Cherokee  Nations  v.  Georgia,  5  Pet.  1.)  But  in  1871  the 
United  States  ceased  to  make  treaties  with  them,  as  with  nations, 
and  thereafter  substituted  the  word  contract.  (Rev.  Stat.  2072, 
act  March  3,  1871.)  And  finally  in  1885  Mr.  Justice  Miller 
declares:  “These  Indian  tribes  are  the  wards  of  the  nation. 

From  their  very  weakness  and  helplessness,  so 
largely  due  to  the  course  of  dealing  of  the  Federal  government 
with  them  and  treaties  in  which  it  has  been  promised,  there 
arises  the  duty  of  protecting,  and  with  it  the  power.”  (JJ.  S. 
v.  Kagama,  118  U.  S.  375.) 

Notwithstanding  the  Land  in  Severalty  Act,  approved  July 
8,  1887,  under  which  Indians  may  take  up  allotments  and 
become  citizens  of  the  United  States,  and  the  Secretary  of  the 
Interior  may  allot  to  those  failing  to  apply,  many  Indians, 
probably  the  majority,  still  continue  their  tribal  relations,  with 
community  of  property,  and  are  still  under  this  “wardship” 
benefitting  by  the  faithfulness  or  suffering  from  the  unfaithful¬ 
ness  of  their  guardian;  and  this  condition  seems  likely  to  con- 


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tinue.  It  is  interesting,  therefore,  to  examine  the  nature  of 
this  wardship  a  little  more  closely. 

The  Supreme  Court  has  well  said  that  the  relationship  of  the 
Indian  tribes  to  the  United  States  has  always  been  an  “  anoma¬ 
lous  one,  and  of  a  complex  character”  (U.  S.  v.  Kagama)  ; 
and  while  saying  that  it  “  resembles  ”  a  guardianship,  and  later 
that  it  is  a  guardianship,  it  is  easy  to  see  that  in  point  of  fact 
this  National  guardianship  differs  materially  from  that  between 
individuals.  About  the  latter  relation  the  law  places  certain 
safeguards  designed  to  protect  the  ward  and  to  remove  tempta¬ 
tion  to  breach  of  trust.  Thus  a  guardian  cannot  buy  his  ward’s 
property ;  he  cannot  contract  with  his  ward,  and  even  when  the 
ward  has  come  of  age,  contracts  with  the  guardian  made  imme¬ 
diately  thereafter  are  looked  on  with  suspicion.  A  person 
whose  interests  were  or  might  become  adverse  to  those  of  the 
ward  would  not  be  appointed  guardian  by  the  courts ;  and 
those  whom  they  appoint  must  enter  security,  and  are  held 
accountable  for  negligence,  as  well  as  for  active  breaches  of 
trust.  It  results  that  breaches  of  trust  are  comparatively  rare, 
and  that  the  remedy  is  prompt  and  usually  effective. 

In  the  national  guardianship,  however,  these  safeguards  are 
wanting.  Under  politics  as  now  conducted,  with  the  constant 
demand  of  office  seekers  and  of  land  grabbers,  the  interests  of 
the  nation  or,  at  least,  of  its  government,  may  fairly  be  de¬ 
scribed  as  adverse  to  those  of  the  Indians.  Yet  the  nation  is 
their  guardian.  This  guardian  contracts  with  its  wards  for  the 
sale  of  their  land  and  property,  and  is  both  buyer  and  seller. 
With  others,  the  wards  cannot  make  contracts  without  the 
guardian’s  approval ;  but  with  their  guardian  they  can  contract 
freely.  And  for  any  breach  of  trust,  the  remedy  is  indeed  a 
slow  and  doubtful  one.  It  consists  practically  of  an  appeal  to 
the  conscience  of  Congress.  The  Indian’s  guardian  can  be 
sued  only  by  its  own  permission,  in  its  own  courts,  and  its 
approval  and  sanction  are  necessary  to  a  contract  between  its 
wards  and  their  attorneys,  retained  by  them  to  conduct  their 
suits.  It  is  fair  to  say  that  this  requirement  of  approval  is 
intended  to  protect  the  Indians  against  improvident  contracts. 
But  the  requirements  may  sometimes  prove  to  obstruct  justice. 


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Thus  in  the  Indian  wardship  we  find  not  only  an  absence  of  the 
usual  and  necessary  safeguards,  but  also  an  ineffective  remedy 
for  negligence  or  other  breaches  of  trust.  Hence  the  constant 
occurrence  of  such  breaches,  the  appeals  to  the  friends  of  the 
Indian  to  assume  their  guardian’s  neglected  duties,  to  prevent 
unjust  legislation  or  contract,  and  often,  as  in  the  case  of  Little 
Whirlwind  and  of  the  Warner  Ranch  Indians,  to  furnish  money 
and  counsel  for  the  protection  of  Indians  threatened  with  the 
loss  of  property,  of  liberty,  or  of  life. 

The  latter  case,  decided  by  the  Supreme  Court  of  the  United 
States,  May  31,  1901,  well  illustrates  the  nature  of  Indian 
guardianship.  The  question  involved  was  the  title  to  certain 
lands.  One  of  the  points  was  that  the  Indians,  if  they  had 
rights,  had  failed  to  assert  them  in  time  ;  and  it  was  answered 
that  if  so,  the  government  was  itself  in  default  by  its  failure  to 
act  for  them.  The  Court  said  : 

“It  is  undoubtedly  true  that  this  government  has  always 
recognized  the  fact  that  the  Indians  are  its  wards  and  entitled  to 
be  protected  as  such,  and  this  Court  has  uniformly  construed  all 
legislation  in  the  light  of  this  recognized  obligation.  But  the 
obligation  is  one  which  rests  upon  the  political  department  of 
the  government,  and  this  Court  has  never  assumed,  in  the 
absence  of  congressional  action,  to  determine  what  would  have 
been  appropriate  legislation,  or  to  decide  the  claims  of  the 
Indians  as  though  such  legislation  had  been  had.  Our  attention 
has  been  called  to  no  legislation  by  Congress  having  special 
reference  to  these  particular  Indians.  By  the  act  creating  the 
land  commission  the  commissioners  were  required  (Sec.  16) 

‘  to  ascertain  and  report  to  the  Secretary  of  the  Interior  the 
tenure  by  which  the  mission  lands  are  held,  and  those  held  by 
civilized  Indians,  and  those  who  are  engaged  in  agriculture  or 
labor  of  any  kind,  and  also  those  which  are  occupied  and  culti¬ 
vated  by  Pueblos  or  Rancheros  Indians.’  It  is  to  be  assumed 
that  the  commissioners  performed  that  duty,  and  that  Congress,  in 
the  discharge  of  its  obligations  to  the  Indians,  did  all  that  it 
deemed  necessary,  and  as  no  action  has  been  shown  in  reference 
to  the  particular  Indians,  or  their  claims  to  these  lands,  it  is 
fairly  to  be  deduced  that  Congress  considered  that  they  had  no 
claims  which  called  for  special  action.” 

It  is  true  that  the  Court  further  said  that  they  were  not  com¬ 
pelled  to  rest  upon  this  presumption  and  that  there  was  evidence 


4 


which  justified  a  finding  of  facts  on  points  adverse  to  the  Indians. 
But  the  principle  above  stated  is  none  the  less  true.  A  com¬ 
mission  was  created  to  ascertain  and  report  on  the  rights  of  the 
Indians,  and  in  the  absence  of  any  evidence  it  is  legally  assumed 
that  the  commission  performed  that  duty,  and  that  Congress 
“  in  discharge  of  its  duty  to  the  Indians  did  all  that  it  deemed 
necessary.”  In  the  carefully  guarded  language  of  the  Court, 
“  as  no  action  has  been  shown  in  reference  to  these  particular 
Indians  or  their  claims  to  this  land,  it  is  fairly  to  be  deduced 
that  they  had  no  claims  which  called  for  special  attention.” 

Whatever  the  facts,  this  presumption  would  have  been  suffi¬ 
cient.  As  against  a  stranger,  the  Indians  are  bound  by  their 
guardian’s  failure  to  act.  As  against  their  guardian,  they  have 
perhaps  a  moral  claim  for  consideration,  based  on  neglect  to 
investigate  their  rights  in  time,  and,  if  in  fact  they  had  none, 
at  least  to  make  for  them  some  other  provision  and  not  permit 
them  to  occupy  and  improve  land  to  which  they  had  no  title. 

The  probability  is  that  the  anomalies  above  referred  to  are 
inseparable  from  Indian  wardship.  It  is  not  easy  to  see  who 
could  be  guardian  if  not  the  nation  ;  and  perhaps  under  all  the 
conditions,  it  is  cause  for  congratulation  that  matters  have  not 
been  worse.  But  we  may  understand  the  need  for  a  strong 
association  upheld  by  a  strong  public  sentiment,  to  act  where 
necessary,  as  the  next  friend  of  the  Indians,  while  national 
guardianship  continues ;  and  we  may  also  perhaps  consider 
whether  the  time  is  not  rapidly  approaching  to  remove  all  guar¬ 
dianship,  to  do  away  with  a  nursing  system,  which  tends  to  foster 
and  perpetuate  weakness  rather  than  to  develop  strength. 
Many  would,  no  doubt,  go  down  were  the  support  removed, 
but  in  the  end  the  total  of  suffering  might  be  less. 


